New EEOC Guidance on Conviction & Arrest Records

June 5, 2012 by James Walcheske

New guidance released by the EEOC on the use of employee and applicant conviction and arrest records clarifies the potential connection between Title VII and arrest and conviction record discrimination.

Recently the EEOC released quite possibly one of its lengthiest-titled documents, Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. Yep, that just happened.

Assuming that most individuals do not have the time, patience, or an interest in voluntarily punishing themselves by reading that entire document, the EEOC was kind enough to create a much simpler, FAQ document. The employment attorneys at Walcheske & Luzi, LLC have taken it a step further by summarizing the most important points.

Important Takeaways from the EEOC’s Guidance Statement

• While Title VII does not prohibit arrest or conviction record discrimination. However, decisions based on arrest or conviction records can still violate Title VII in 1 of 2 ways:
  1. Through disparate impact – Arrest or conviction record policies have an adverse impact on a protected category, even if they were not meant to. We discussed how Pepsi’s conviction record policy had disparate impact on applicants in our last blog post.
  2. Through disparate treatment – An employer treats individuals with the same history differently based on a protected category. An employer rejecting an African-American applicant based on a battery conviction, but hiring a Caucasian applicant with the same conviction is an example of disparate treatment.
• Employers still must follow procedures set by the Fair Credit Reporting Act (FCRA) when conducting background checks.
• Just because an individual was arrested for an offense, does not mean they were guilty.
• Use conviction records as proof that the individual engaged in the conduct for which they were charged.
• National data gathered by the EEOC indicates policies that exclude applicants with criminal records have a disparate impact on applicants based on race and national origin.  Policies excluding all applicants with a criminal record will violate Title VII unless the offense is job related and consistent with business necessity, or federal law requires the policy.

EMPLOYMENT LAW TIP: If an employer wishes to implement a criminal record policy, a policy that screens applicants’ conviction records on a case-by-case basis is less likely to violate Title VII.

What’s an employer to do? Leave it to the professionals! This is particularly true in Wisconsin, where the Wisconsin Fair Employment Act (WFEA) prohibits arrest and conviction record discrimination.

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